Miscarriages of JusticeUK (MOJUK) 22 Berners St, Birmingham B19 2DR police, only to have to scrap those conclusions and start again. This was known to have con - Tele: 0121- 507 0844 Email: [email protected] Web: www.mojuk.org.uk cerned May. The Metropolitan police said in a statement on Tuesday: “The matter was reinvesti - gated with a final report in April 2015 recommending six officers face gross misconduct hearings MOJUK: Newsletter ‘Inside Out’ No 636 (18/05/2017) - Cost £1 and five face misconduct hearings. One officer had left the MPS prior to the second IPCC inves - tigation; two others have also since left the MPS. “Following liaison with the Met’s Directorate of Mother of Olaseni Lewis Who Died After Police Restraint Calls For Prosecution Professional Standards, the IPCC subsequently directed the MPS to hold gross misconduct and Damien Gayle and Vikram Dodd, Guardian: The mother of a young man who was killed by misconduct hearings in connection with those officers still serving. The CPS also considered the prolonged restraint on a mental health ward has called for the police officers involved to be matter in 2015 and decided no criminal charges should be brought against any officer.” prosecuted, after an inquest concluded that excessive force contributed to his death. Olaseni Deborah Coles, Director of INQUEST said: “This jury have reached the most damning conclusions Lewis, 23, from South Norwood, south London, died on 3 September 2010, three days after on the collective failures of police and mental health services. This was a most horrific death. Eleven he was subjected to two periods of restraint by police lasting more than 30 minutes, while in police officers were involved in holding down a terrified young man until his complete collapse, legs the care of Bethlem Royal hospital. He had no history of violence or mental illness and had and hands bound in limb restraints, while mental health staff stood by. Officers knew the dangers of been taken to the hospital by his mother and father after an episode of mental ill health that this restraint but chose to go against clear, unequivocal training. Evidence heard at this inquest begs began over the August bank holiday weekend. the question of how racial stereotyping informed Seni’s brutal treatment. INQUEST’s casework and In a narrative conclusion given after the coroner ruled out a finding of unlawful killing, the monitoring reveals that a disproportionate number of people with mental health issues and/or from jury identified a litany of failures by both police and medical staff that contributed to Lewis’s BAME communities die following the use of force. That these deaths continue illustrates systemic death. “The excessive force, pain compliance techniques and multiple mechanical restraints problems in the processes for holding police to account at an individual and corporate level. Despite were disproportionate and unreasonable. On the balance of probability, this contributed to the a plethora of recommendations arising from investigations, inquests and reviews there has been a cause of death,” they said. Police failed to act in accordance with their training and recognise failure of leadership to implement change in culture, approach and training. We call in the strongest Lewis’s acute behavioural disorder as a medical emergency, the jury said. A doctor then failed possible terms for the Metropolitan Police Service, the Home Office and Department of Health to to respond when Lewis became unresponsive and his heart rate slowed dramatically during publicly respond to the shocking evidence that has come out of this inquest”. the second period of restraint. The police failed to follow their training, which requires them to Seni’s parents, Aji and Conrad Lewis, said in response to today’s conclusion: “When Seni became place an unresponsive person into the recovery position and if necessary administer life sup - ill, we turned to the state in our desperation: we took him to hospital which we thought was the best port,” the jury concluded. “On the balance of probability this also contributed to the cause of place for him. We shall always bear the cross of knowing that, instead of the help and care he need - death.” The medical cause of death was given as a combination of hypoxic brain injury (which ed, Seni met with his death. Now, after almost seven years of struggle to get here, the last three occurs when the brain is starved of oxygen), cardiorespiratory arrest and restraint in associa - months have allowed us to hear for ourselves about what happened to Seni. We have heard about tion with acute behavioural disturbance. the failures at multiple levels amongst the management and staff at Bethlem Royal Hospital: instead After the conclusion was handed down, Ajibola Lewis, Olaseni’s mother, said the family had of looking after him, they called the police to deal with him. And we have heard about the brute force suffered “seven years of struggle” to find out the circumstances of her son’s death. She with which the police held Seni in a prolonged restraint which they knew to be dangerous: a restraint expressed her regret at turning “to the state” in a desperate attempt to help her son. She said that was maintained until Seni was dead for all intents and purposes. the family had heard of failures at multiple levels among staff at Bethlem. “And we have heard In light of the evidence we have heard, we consider that the prolonged restraint that result - about the brute force with which the police held Seni in a prolonged restraint, which they knew ed in Seni’s death was not and cannot be justified, and we now look to the Crown Prosecution to be dangerous: a restraint that was maintained until Seni was dead, for all intents and pur - Service to reconsider the case, so that the officers involved in the restraint may be brought to poses. In light of the evidence we have heard, we consider that the prolonged restraint that answer for their actions before a criminal court. This is necessary, not just in the interests of resulted in Seni’s death was not and cannot be justified, and we now look to the Crown justice for Seni, but also in the public interest, so that the police are seen to be accountable to Prosecution Service to reconsider the case, so that the officers involved in the restraint may be the rule of law. The officers involved in the restraint have not been able or willing to offer any brought to answer for their actions before a criminal court.” word of condolence or regret in their evidence, in the same way that none has been forth - Theresa May, while home secretary, took a personal interest in the case and met the Lewis coming from any of their managers or superiors in the Metropolitan Police over these years. family in January 2015. The first investigation into Lewis’s death by the Independent Police That lack of simple human decency is telling, and the new Metropolitan Police Commissioner, Complaints Commission cleared officers over his death, but pressure from the family meant the Cressida Dick, has an opportunity to put it right. We call on her to meet with us, so that we watchdog scrapped its conclusions and started a fresh inquiry. In a letter to them and another may help her to take responsibility for Seni’s death, to understand the lessons that need to be bereaved family, May wrote: “It is clearly unsatisfactory that families should have to go to court learnt, so that other families need not go through what we have had to endure. As a family, we to quash an IPCC report in order to secure a second investigation into the death of a loved one.” couldn’t have got through the last seven years without our Christian faith, the support of our In the Lewis case and that of musician Sean Rigg, who died after being restrained by police family, friends and legal team, and the unending strength we have gained from the team and in 2008, the IPCC claimed to have carried out thorough investigations that exonerated the other families at INQUEST and the United Families and Friends Campaign.” Raju Bhatt, the solicitor for Seni’s family, said: “Seni’s case has revealed a mental health overturn a conviction referred to it by the CCRC, based on proven serious misconduct by service and a legal system which appear unfit for purpose in the eyes of his family. They have certain police officers in other similar cases which were subsequently exposed as major mis - been failed repeatedly over the years since his death in 2010: first by those responsible for the carriages of justice (here). This has reinforced our concerns about how the CCRC will, or will hospital at which he was restrained to death; then by the officers involved in that prolonged not, react to suggestions we make in our submissions that relate to potential police malprac - restraint and their managers at the Metropolitan Police; then by those at the IPCC who seemed tice. In particular, the bar is undoubtedly set so high that any submission to the CCRC that incapable of fulfilling their responsibility to investigate the death; and, above all, by a process necessitates a full investigation into police activity probably has less chance of success than which allowed almost seven years to pass before this inquest could take place, the first occasion the proverbial cat in hell. It can be ‘the kiss of death’, our student Alex Thomas suggests. on which there has been any semblance of proper scrutiny in respect of the circumstances of So this article summarises how the CCRC dealt with our issues in this one particular case. It con - the death. That scrutiny has served only to confirm that Seni’s death was entirely avoidable, if firms our concerns that in this post-Hillsborough world there is still such reluctance by our appeal court only lessons had been learnt from the many deaths in similar circumstances in the past. It is properly to deal with alleged police misconduct. This has a knock-on effect on the CCRC in that they time that those responsible within our police service say for once and for all: no more!” are understandably reluctant to refer when they know how the Court of Appeal will react. This con - INQUEST has been working with the family of Seni Lewis since his death in September firms deep problems with the culture of our appeals system, and reinforces the need for an urgent 2010. The family is represented by INQUEST Lawyers Group members Raju Bhatt and Sophie review. To be fair to the CCRC, they invested time in meeting with us on Tommy’s case. One com - Naftalin of Bhatt Murphy Solicitors, Karon Monaghan QC of Matrix Chambers and Alex Gask missioner and two of their employees spent two hours with us in Birmingham in recent months. It was, of Doughty Street Chambers. A Health and Safety Executive investigation into Lewis’s death however, of concern to us that the meeting was suggested only after they had issued a final state - is pending following the conclusion of the inquest. ment of reasons. That meant it could not be a meaningful meeting, at which the CCRC retained an open mind about what was discussed. For that reason, it felt rather pointless, to be frank, even though IPCC Response Following Inquest Conclusion Into Death Of Olaseni Lewis we respect the fact that they gave us time out of their busy schedules. It felt patronising because the The IPCC investigation into the circumstances surrounding the death of Olaseni (Seni) meeting was not offered at a stage where they may have changed their minds as a result of anything Lewis was completed in April 2015 and concluded six officers have a case for answer for gross that was said at that meeting. I’m sure that wasn’t the intention, but it might be worth the CCRC imple - misconduct and five a case to answer for misconduct. Following the conclusion of the inquest menting a good practice protocol of holding meetings at a meaningful point in reviews. into the death of Mr Lewis today and the narrative verdict delivered by the jury, the IPCC will One of our main concerns in Tommy’s case can be summarised as follows. There was an be working with the Metropolitan Police to ensure that disciplinary proceedings are held absolutely crucial police message from a community safety officer which described a potential promptly. An initial IPCC investigation into the circumstances surrounding the death of Mr suspect wearing a red hiking sock on his hand on the day of the murder. The next day a red Lewis concluded in 2012. The IPCC subsequently took the step of advising the Lewis family sock was found near the crime scene around midday. The timing of this message, written as to judicially review this investigation at the High Court so that the findings could be overturned 10.10 that day, was critical in that it was timed before the sock was found, which makes the allowing a fresh investigation, launched at the end of 2013. The IPCC directed the observations appear very reliable. Furthermore, later that day Tommy’s co-defendant Metropolitan Police to hold disciplinary proceedings into the conduct of serving officers in described how Tommy put a red sock on his hand when he stabbed the victim. This is power - August last year. Commissioner Cindy Butts said: “It has been my ongoing commitment, since ful evidence; a witness sees an unusual item being worn, the item is later found and then the taking on the oversight of our second investigation into the circumstances surrounding the co-defendant later confirms it was used in the murder. tragic death of Seni, to obtain answers for his family. The IPCC has been clear about the mis - However, the relevant message was subject to a number of recording anomalies. (Those of you takes made in the past and I have personally apologised to the Lewis family in public and in recently following ITV’s Line of Duty will know how crucial this all is to the integrity of the recording private. The Metropolitan Police have been directed to carry out disciplinary proceedings of evidence!). It was not recorded in the incident log, it was not properly referenced on the schedule which I hope will take place as soon as possible.” of unused material, and was not properly referenced or signed off by the indexer. Indeed, the refer - ence (written on the message) to its place on the unused schedule was incorrect. The message did #CCRC20: Policing the Police not appear on the schedule at all and the corresponding number on the schedule related to an entire - Julie Price, Cardiff Law School: Is Thomas (‘Tommy’) Grecian innocent of the murder of Jimmy ly different message. All the messages disclosed, except this one, correspond to the numbered item Atkinson? We can’t know that. But what we can say for certain is that we have serious doubts about on the unused schedule. Of course, given the importance of the message to the prosecution case, the safety of his conviction. Tommy has always protested his innocence of the 2004 murder. Our these kinds of anomalies raised questions about the integrity of the incriminating message. Might it innocence project has been working on Tommy’s case for four years, culminating in us making sub - have been created at a later stage in order to artificially strengthen the evidence? The anomalies missions to the CCRC based on what may be regarded as some very ‘dodgy’ police actions during relating to the unused schedule in particular are, on the face of it, highly suggestive of this. the investigation. How did we get on? It was turned down – no surprise there then. The CCRC says that this does not warrant investigation – it is not new, and it could have been This is Tommy’s story, in brief. He wants to share with the world his protestations of inno - questioned at the time of trial. However, in reality, it is virtually impossible for the defence to investi - cence and his story has been picked up by a newspaper local to the murder scene – see here. gate such suspicions in the pre-trial process and it would be very dangerous to suggest police Our previous article in this series looked at an example of the Court of Appeal declining to manipulation of evidence at trial without having proof. The CCRC also points out there is other 3 4 evidence that appears to be compelling, which in fairness it does, on the face of it. However if he was pepper sprayed directly in the face, handcuffed, taken to the floor, his legs were there has been manipulation of evidence, and neither the police nor the CCRC have provided any strapped, and he was pepper sprayed again numerous times while restrained. explanation for the anomalies, how can the integrity of other evidence be assured? The situation Family members including the passenger’s two brothers came out of their property upon became even more damaging for Tommy when his co-defendant pleaded guilty eight days into the hearing his screams and officers shouting. The two brothers were also pepper sprayed, trig - trial, having implicated Tommy in a trial predicated by the prosecution from the outset on ‘joint enter - gering an asthma attack for one of the brothers, and they were arrested. The wife of the other prise’. The prosecution had clearly told the jury that if one was guilty then both were guilty. No-one brother was almost pushed over while holding their three-year-old child, causing alarm to var - at the trial seemed to recognise that to continue the trial against Tommy was beyond prejudicial – ious neighbours who were threatened with violence on trying to help her keep her balance and his conviction was a logical certainty. It is deeply disturbing, in our view, that the CCRC would not hold of her baby. The men’s mother and younger sister were shoved by officers- the sister had budge in the face of both potential police malpractice and a blatantly unfair trial. been trying to get an inhaler to her brother. They were taken to High Wycombe police station Our meeting with the CCRC was very professional and courteous, as always. The commis - and despite their medical conditions and injuries they were kept outside the station in cuffs and sioner was keen to establish the basis on which we conduct our reviews/investigations, com - leg bands for around 4 hours, before being formally booked into custody and checked over by pared to how the CCRC tackles its reviews. We explained that we looked at cases more wide - a medic. All three were released at around 4pm on the 6th May and charged with Public Order ly than the real possibility test constrictions would dictate. We look at evidence that was avail - offences around using threatening language/disorderly behaviour. able at the time of trial, as well as looking for new evidence where possible. We explained that The family and residents who contacted Justice4Paps and High Wycombe Community Advocates to do otherwise flies in the face of common sense, whatever the statute says. Our approach are extremely distressed by the violence they have witnessed and the disproportionate number of is also in line with, and supports, our wider calls for a fairer appeals system that does not oper - police vehicles and officers that attended to a routine stop and search. The family are shocked at the ate under such disingenuous rules that serve to perpetuate injustice in the interests of the level of force used to restrain the men, and then the use of pepper spray. The mother has stated that ‘integrity’ of the system. It seemed that a penny dropped for the commissioner at this point. she “never expected the police to behave like a pack of ‘wild animals’, who show up with the sole We were being asked to explain our ‘methodology’, and it was clear to both sides that it was - intent of wanting to seriously hurt someone.” Zia Ullah from Justice4Paps and the founder of High n’t the same approach that the CCRC uses. We know what the statute says about ‘real possi - Wycombe Community Advocates raises further concerns around the lack of any understanding of bility’, and we know what the CCRC’s statutory remit is. But that doesn’t mean that we should the dangers associated with the use of restraints on someone that displays underlying health con - accept the elephant in the room that is the artificiality of the rules of the game and the unsatis - ditions. “That an officer who is involved in a previous death in police custody and ongoing investiga - factory insistence on the finality of the jury verdict. We approach our reviews with our own integri - tion that spans almost a decade had an involvement in this incident is incredibly disturbing. The ty at their heart, rather than the integrity of a system that is neither fair nor working. We aren’t actions of those officers on Friday evening could have led to other fatalities. That one of the young being naïve in taking this holistic approach. We know full well that we have to address our sub - lads was denied access to his inhaler, and the length of time it took for him to get medical attention missions to the appeal criteria. We make huge efforts to do just that, and sometimes we have is a huge worry. Clearly no lessons have been learnt about the use of certain restraints and the dan - the input of practising lawyers whose job it is to bear that in mind. But alongside that, and out of ger of a large number of officers carrying them out on one person simultaneously.” We demand a respect to our clients and to the truth, we make our submissions wider. We do not omit facts or response from Thames Valley Police and immediate scrutiny of their actions on Friday evening. In arguments that aren’t ‘allowed’ now just because they were available at the time of trial. We are due course, we will be assisting the family and their neighbours in making formal complaints. - The not averse to spelling out flaws in evidence, potential police malpractice, or poor defence work Justice for Habib ‘Paps’ Ullah/Justice4Paps campaign was set up in July 2008 after the death of at trial, where fair play dictates that we should do so. Genuinely innocent people deserve better Habib during a routine stop and search in a car park in High Wycombe. than to be prevented from using the same evidence presented differently, just because our sys - tem favours finality over fairness. We say that the rules of the game aren’t fair, and need to be Defence Chiefs 'Cosy' With Prosecutor in Leigh Day Case changed urgently. - Articles on the Justice Gap by staff and students of the Cardiff Law School Defence officials imposed a "palpable level of cumulative pressure" on prosecutors to ensure a Innocence Project are their own personal views based on their project casework. law firm would be charged with wrongly alleging that British soldiers tortured and murdered Iraqis, a tribunal was told on Friday. Lawyers for Leigh Day accused senior officials at the Ministry of Defence Thames Valley Police: No lessons Learnt! and the Solicitors Regulation Authority of having an inappropriately "cosy relationship". In evidence We Justice4Paps campaign, are concerned about the actions of Thames Valley Police on during the second week of a Solicitors Disciplinary Tribunal in London, the lawyers said senior fig - the evening of Friday 5th May, after a routine stop and search of a vehicle culminated in a ures at the MoD and SRA had adopted the position of "being on the same side". large police presence where several officers in attendance have assaulted three men, their Correspondence between Sir Michael Fallon, the defence secretary, and Paul Philip (pic - respective families, and behaved threateningly toward local residents. Residents witnessed a tured), the chief executive of the SRA, allegedly demonstrated that the solicitors' body was driver and a passenger being searched, and the passenger requesting that the female officer attempting to manipulate the investigation and disciplinary process for its own political gain. who was present refrain from searching him, but clearly communicating that he had no prob - Patricia Robertson, QC, the barrister defending the firm and three of its lawyers, challenged lem with any of the other officers carrying out the search. He had already been involved in Ben Saunders, the assistant head at the public inquiries, judicial review and claims team at numerous incidents of harassment from this particular officer. Although he posed no threat the MoD over relations between the ministry and the solicitors' watchdog. 5 6 "You both took the view that Leigh Day was guilty as charged," Robertson said to adjourned while samples are re-examined, and priority is being given to cases that are about Saunders, who responded: "I wouldn't go that far." Robertson told the tribunal that evidence to come to court. We are prioritising the most serious and pressing cases but all cases where showed that defence ministers put Saunders "under significant scrutiny" and pushed him to there could have been an impact on prosecution will be assessed, retested and appropriate press the SRA to bring disciplinary proceedings against the firm. Leigh Day, its founder, Martyn action taken. While there has been limited retesting to date, the evidence has shown that in Day, his partner Sapna Malik and a junior solicitor, Anna Crowther, face a range of misconduct the vast majority of cases, the original reporting was accurate.” charges over their handling of claims brought on behalf of Iraqis in the wake of the 2004 Battle A spokesperson for the CPS said: “We continue to work with the Home Office, police and of Danny Boy. All three lawyers deny the misconduct charges. the office of the forensic science regulator to assess the impact of issues relating to Randox But yesterday its defence team accused the SRA of pandering to the defence chiefs for its Testing Services. Our priority is to establish the impact of these issues on both completed and own purposes. Robertson told the tribunal that the authority was involved in a long-running ongoing cases, in order to ensure that appropriate action is taken.” A Home Office spokesper - power struggle with the Law Society, the body that represents 130,000 solicitors in England son said: “This matter is currently being urgently investigated by the forensic science regula - and Wales. She said the authority was battling for independence from the society. tor and the UK Accreditation Service (Ukas) and a criminal inquiry has been launched by The regulator has also been pushing to lower the standard of proof in disciplinary hearings Greater Manchester police. The Home Office is working closely with the NPCC, forensic serv - involving solicitors, reducing it from the current criminal standard to the civil standard, which ices regulator and Crown Prosecution Service (CPS) to prioritise samples for retesting.” would arguably make convictions easier. "The SRA was using these proceedings to lobby the government for professional reform," Robertson put to Saunders, who acknowledged: "That is Will The Government Keep its Promise to Reduce Detention of the Vulnerable? a fair characterisation of the situation." In her opening speech to the recent Westminster Hall debate on the detention of vulnerable people last month, Anne McLaughlin MP perfectly summarised the predicament we now face: Scores of Convictions in Doubt Amid Forensic Test Manipulation Claims ‘The most soul destroying thing about being in detention is the unlimited nature of it – not Vikram Dodd, Guardian: Police fear scores of convictions may face challenges to their safe - knowing when or whether you will be released; the most soul destroying thing for campaign - ty because of the suspected manipulation of forensic test results at a private laboratory in ers, many of whom have been in detention or are still at risk of detention, is not knowing when Manchester. James Vaughan, the national police lead for forensic outsourcing, said two the Government will do as they promised.’ We are now in challenging times: detention reform employees of the testing services company Randox were under criminal investigation for has been promised, but has not materialised. The recent debate, in which MPs from across allegedly perverting the course of justice after issues with test results emerged in January. the political spectrum expressed their concerns about the ongoing harm faced by the most vul - “We believe there are potential criminal acts that took place,” Vaughan said. He said the inves - nerable in detention, underscored this lack of progress. tigation had grown, with the results of 6,000 samples under question. Scores of cases could Detention of vulnerable people is not a new concern. NGOs have been raising this for years be referred to the court of appeal, including rape and murder cases as well as more minor along with a growing number of medical experts, specialist organisations and experts by expe - cases such as drug-driving, he added. rience. Recently, a cross party panel of parliamentarians joined the chorus, which was fol - Some results of tests relating to levels of drugs in blood could be wrong. Police and prose - lowed by an independent review (the Shaw Review) commissioned by the Home Office, and, cutors do not know which can be relied on and are trying to establish which results have been finally – critically – by the Government itself. Responding to the findings of the Shaw Review, compromised. Investigators are looking into alleged manipulation of data from toxicology test - then Immigration Minister, James Brokenshire, set out the aims of a new policy based on the ing carried out by Randox as far back as 2014. At first it was thought fewer than 500 samples premise that vulnerable people should not be detained. He gave reassurance that the new pol - were in question. Initial retesting of samples still held has shown broadly the same results as icy, together with other measures, would ‘lead to a reduction in the number of those detained, was presented in court cases. However, 10% of samples are no longer held, cannot be retest - and the duration before removal’. ed and thus can no longer be relied on. Much could depend on how crucial the toxicology test In his ministerial statement in January 2016, he said; ‘First, the Government accepts Mr results were in the prosecution’s case. Shaw’s recommendations to adopt a wider definition of those at risk, including victims of sexual Some sources believe a small number of serious cases may end up being referred to the court violence, individuals with mental health issues, pregnant women, those with learning difficulties, of appeal because of concerns about the safety of convictions where the testing done by Randox post-traumatic stress disorder and elderly people, and to recognise the dynamic nature of vul - was a part of the prosecution case. These would be cases where the original samples tests can - nerabilities. It will introduce a new “adult at risk” concept into decision-making on immigration not be found and thus can not be retested. Appeal court judges would then have to decide detention with a clear presumption that people who are at risk should not be detained, building whether the results of the forensic tests could have affected the guilty verdict reached by a jury. on the existing legal framework.’ For the first time, there was official recognition that the current Vaughan said: “This is a serious breach of the very rigorous professional standards set by safeguards in place were not working and that vulnerable people – who found themselves in the forensic science regulator for staff and organisations working in this critical field. We now detention without time limit – should be systematically routed away from detention. have a clearer picture of the scale of this data manipulation.” The alleged manipulation relates Fast forward a few months and the outcome of Brokenshire’s promise, the ‘Adults at Risk’ to data describing the findings of the tests of samples submitted by police forces to the lab. policy, was implemented in September 2016. It appears that our initial optimism about the The samples themselves were not interfered with, police said. Some cases have been Government’s response was misplaced. The new policy has been widely critiqued for intro - 7 8 ducing a new, questionable process of ‘balancing’. In applying the new policy, civil servants tive of reducing the detention of vulnerable people . In particular, by side-lining the central must now weigh up potential vulnerabilities or risks of harm against somewhat ambiguous question of community-based alternatives yet again, the government has fallen foul of what ‘immigration factors’. This also means the principle of safeguarding vulnerable individuals the parliamentary inquiry referred to as ‘tweaking’ or tinkering round the edges, ignoring the against the risk of harm by detention is not prioritised over the administrative consideration of bigger problems and exploring possible solutions. There is already a small but promising pilot immigration factors when the decision to detain is made. project, the Community Support Project, run by Detention Action, which is successfully meet - There are other worrying aspects this policy too. For example, the previous definition of tor - ing extremely complex needs of individuals who were formerly detained in the community. ture has been ‘downgraded’ to a narrower definition. Previously, torture was understood in New alternatives which cater for other types of individuals could be developed together with terms of the damage caused to the individuals, rather than defined by the type of the perpe - civil society organisations so that not just immigration concerns but crucially individuals’ vul - trator. The new policy definition restricts its definition of torture to acts undertaken by state nerabilities are properly addressed, to ensure that they are fully assisted and empowered to agents. This leaves at risk of detention many survivors of rape, sexual / gender based violence work towards resolving their cases in the community. and gang violence where it was inflicted by non-state agents. Legal proceedings are already So what now? Stephen Shaw has been invited back to carry out a ‘short review’ in autumn underway to challenge this downgrading of previous protections. The new policy has in some 2017. One of the biggest challenges for the review will be assessing the extent to which the new ways responded to the recommendations of the Shaw Review, for example by including peo - policy is successfully reducing the numbers of vulnerable people detained. How such assess - ple with learning difficulties in the categories which may now constitute vulnerability. However, ment will be done is far from clear, not least as there is no baseline to enable before and after the policy fails to address one of his key recommendations: that vulnerability should be con - comparisons – the government has said it has no idea how many vulnerable people are sidered in a holistic manner, more broadly, and with recognition of the changes in vulnerabili - detained. So how will it monitor that the policy is working? So far, we have our doubts about how ty over time. This was argued for by the Detention Forum, as well as by JRS Europe in their the policy will fulfil its aims: many detention NGOs are still reporting that they are meeting vul - Europe-wide study, ‘Becoming Vulnerable in Detention’. Once detained under the new policy, nerable people struggling with the impacts of indefinite detention. We believe far more can be the system remains unchanged: the mechanisms, such as Rule 35, remain as dysfunctional achieved if civil society and migrants themselves are involved in discussion about how best to as ever so it is as difficult as it was before to be released. route vulnerable people away from detention, and crucially in discussions about how the UK There are also major gaps in the types of vulnerability recognised in the new policy. A glar - could better apply a wider range of community based alternatives. Without this, the government’s ing omission is any mention of those who lack capacity to deal with their immigration case or current attempts to protect ‘Adults at Risk’ could result in a policy that achieves very little. to instruct someone to do so, arguably one of the most heightened examples of vulnerability The Westminster Hall debate left many questions unanswered, and was concluded by a in detention. The policy is also worlds away from current international good practice, such as request from Anne McLaughlin MP to the Minister: ‘Will the Minister have a meeting with me the Vulnerability Screening Tool recently published by UNHCR and the International Detention and some of these groups, which have a lot of experience of detention and a lot of valuable Coalition, an individualised and holistic assessment process with the goal of making the most information about the alternatives? He has not answered why we are not using all the alter - appropriate placement decision, ensuring that the person’s vulnerabilities and support needs natives that are far cheaper and far more effective. Why are we not looking at those? Will he are catered for in the most suitable environment. And on this last point – making the most agree to that meeting?” We are still waiting to hear from him. appropriate placement decision – international evidence is clear: appropriately designed and managed community-based alternatives to detention can work in supporting such individuals, Drop Cultural Niceties About Female Genital Mutilation who would be detained otherwise, to continue to engage with the immigration procedures in The New York Times recently announced an editorial policy to replace the word "mutilation" the community. This is especially critical for vulnerable people who will struggle disproportion - with "cutting" in articles concerning female genital mutilation (FGM). The newspaper's editors ately in detention. In fact, both the cross-party Detention Inquiry panel and the Shaw Review take the view that using "mutilation" is "culturally loaded". The same day, on this side of the emphasized that the government should consider developing a wider range of alternatives to Atlantic, Ukip wheeled out its "integration agenda" in which the party proposed that "at risk" chil - detention to reduce the overall use and length of detention. Yet those responsible for the draft - dren should be subject to checks for evidence of FGM following overseas trips. The next day, ing of a policy omitted to include this crucial element. the London Assembly called for mayor Sadiq Khan to act on figures showing that of an estimat - Currently, the Home Office only has two only options: detention or reporting. The present ed 170,000 women and girls who have undergone FGM in the UK, half reside in London. reporting arrangements do not incorporate specific and effective measures that support the I struggle with the New York Times's decision as it seriously minimises this gross human often complex needs of vulnerable people in a structured way. In failing to consider options rights abuse that is used to assert control over an estimated 200 million women and girls. other than the traditional reporting arrangements, the balancing act set up by the new ‘Adults According to the World Health Organisation and Unicef definition, FGM comprises all proce - at Risk’ policy creates a situation where vulnerabilities can always be overridden by immigra - dures involving the partial or total removal of the external female genitalia or other injury to the tion factors, and people end up detained precisely because there are currently no community female genital organs for non-medical reasons. Simply put, this is a grave assault on women, based alternatives that meet their needs. and when it is performed on girls it is also child abuse. Although it may be that FGM is preva - On the whole, we are left with the impression that the Adults at Risk policy has been a lent in some cultures, the human rights of women and girls to be afforded protection from such missed opportunity, both to protect vulnerable people, and to meet the overarching objec - practices significantly outweighs any need for cultural sensitivity. In 1985 a specific crimi - 9 10 nal offence relating to FGM was introduced in the UK. The law was amended in 2003 to relationship with the family of the complainers had been with a view to initiate a process of criminalise performing FGM on a British national or permanent resident in any territory. grooming. It was argued that the similarities relied on in the present case are no more than the “con - But there has never been a successful prosecution. In 2015 an amendment to the law introduced ventional similarities” which might be looked for in cases such as these. FGM protection orders for those at risk on application to the courts by the police, local authority or For the Crown it was submitted that the family relationship was important, as although it others. The courts have several powers in their arsenal, such confiscating passports and it is a crim - was not a factor in the abuse of the first complainer, the appellant had developed a friendship inal offence to breach a FGMPO. The 2015 law also introduced the offence for those with parental with the family as a result of tutoring and the second complainer had known the appellant all responsibility of failing to protect a girl from FGM. To ensure the efficacy of the legal remedies, it is his life as a friend of the family. Looking at it as a campaign, the evidence showed that the necessary for communities that practise FGM to be educated and engaged so that victims, those at appellant got himself into a position where he had carried out abuse of the first complainer risk of and those that perform FGM can be identified. The proposed Ukip policy of performing inva - without alienating him or having the abuse reported and he remained friendly with the first sive examinations on children's genitals will not facilitate an environment in which the authorities can complainer. Having successfully abused the first complainer other family members became a tackle the problem. Unwarranted medical examination is also child abuse and a strange way to deal focus of interest for further abuse and in that context the second complainer became an with this devastating human rights violation. It is vital that Sadiq Khan heeds the call for effective “attractive prospect” as a target, it was argued. action to end FGM in London and that there should be pressure on the government to step up efforts However, the judges observed that had to be taken when applying the Moorov doctrine, to tackle this practice in the UK. We have a legal framework. Improved training is needed for pro - especially where a limited number of charges were separated by long intervals of time, or fessionals who lack confidence about how to respond, as is better co-ordination between front line there was a “real risk” that evidence which pointed only to a general disposition to commit a services. But ultimately a problem of this magnitude needs supranational co-operation and collec - particular type of offence would wrongly be allowed to be used as mutual corroboration. tive condemnation. Source: Times ‘The Brief” - Gemma Lindfield barrister at 5 St Andrew's Hill chambers Allowing the appeal, the court also noted that the time gap between the two charges was “sub - stantial” and that the family relationship appeared to be “incidental, rather than a factor pre - Teacher Guilty of Child Sex Offences Wins Appeal Against Conviction cipitating or facilitating the conduct”. Delivering the opinion of the court, the Lord Justice Clerk Scottish Legal News: A maths teacher found guilty of two charges of child sex offences 17 said: “There was evidence that, even at the time of the events in the first charge, the appel - years apart on the basis of “mutual corroboration” has successfully appealed against his con - lant acted as tutor to other boys. He continued to do so over the years. The argument that he viction. The Criminal Appeal Court ruled that there were no compelling features of such a strik - lacked opportunity to commit such offences is difficult to accept: this is not a case of abuse ing similarity to suggest that the two offences were part of the same course of conduct sys - within a family, where the first occasion for repetition of such abuse occurs when the original tematically pursued by the appellant. Justices Clerk, Dorrian, Brodie and Malcolm, heard that complainers have children of their own. “There are, of course, similarities in the conduct, but the appellant “RB” was sentenced to six years’ imprisonment after a jury convicted him of sex - they are the similarities which one might expect to find in any two offences of this kind. There ual offences committed against two secondary school pupils, to whom he had given extra are no similarities of such a striking or extraordinary nature which might suggest that the two tutoring at lunchtime and after school and awarded “prizes” such as designer clothes and bot - offences were part of the same course of conduct, systematically pursued by the appellant. tles of Buckfast for taking part in various sexual acts. The second complainer was the nephew The evidence in the present suggests two separate courses of conduct, albeit arising from a of the first complainer and the Crown relied on the operation of the Moorov doctrine for con - particular disposition. It was argued that the circumstances were such that the trial judge was viction, as the temporal gap between the offences, at its shortest, was just under 17 years. correct to leave the decision to the jury. However it has been repeatedly stated that the rule of The grounds of appeal were that the trial judge erred in repelling a defence submission of mutual corroboration must be approached with caution, and this especially when there are “no case to answer”, there being “insufficient evidence” to indicate that the incidents formed only two complainers. In the present case there is the added factor of a 17-year interval part of a course of conduct on the part of the appellant; and that there being “no evidence of between the respective accounts. Given that for the reasons explained earlier, the family con - compelling features” consistent with such a course of conduct, no reasonable jury could have nection is not a powerful factor, we are satisfied that the issue should have been withdrawn concluded otherwise and have convicted. On behalf of the appellant it was accepted that there from the jury. In the circumstances the appeal must succeed.” was “no upper limit” of time beyond which the Moorov doctrine could not be applied, the mat - Scots Law and the Moorov doctrine: The name Moorov is well-known in Scottish criminal law. ter being one dependent on the circumstances of each case. Samuel Moorov's case in the High Court in Glasgow in 1930 gave rise to what has become com - However, the gap in time of 17 years was such that it was necessary to identify an “extraordinary monly known as the Moorov doctrine. The principle was established in the famous case from feature or striking similarity” between the character and circumstances of the respective charges Scots law of Moorov (Samuel) v HM Advocate in 1930, when an employer was accused of sex - before the doctrine of mutual corroboration could apply. Such features must demonstrate an “under - ual offences against 19 female employees during a period of about three years at a drapery busi - lying unity of intent” to enable the jury to conclude that, notwithstanding the gap in time, they were ness he ran in Argyle Street, Glasgow. It was decided that the close interrelation in time, place component parts of a course of conduct persistently pursued by the appellant. Here, the similarities and circumstances between the offences demonstrated that this amounted to a single course of were not extraordinary, and there were “significant differences” between the two charges, it was sub - conduct which could be proved by the witnesses to each offence corroborating one another. The mitted. There was no evidence to suggest that the appellant had no opportunity to commit other sim - principle means that a number of offences witnessed by only one person can be grouped togeth - ilar offences in the intervening period and there was no evidence to suggest that the appellant’s er to show a pattern of behaviour and then could be used in a court case. An appeal from 11 12 Moorov's lawyers was unsuccessful, but he did manage to have his sentence reduced from four assisted dying. Arguments based on the prohibition on degrading treatment under Article 3 years to one. The view was generally taken to begin with that the "Moorov doctrine" applied only may be less effective than they were in deportation cases as signatory states’ medical and to sexual offences where corroboration was normally difficult to obtain. However, it did apply to social services become more pressed; foreign nationals cannot oppose removal orders on the a series of assaults by razor slashing in a 1951 case. basis that welfare in destination states is inadequate. The expansion of Article 4 to cover human trafficking is a bleak reflection on modern life; Forensic Science Regulator Calls For Legal Aid Rise there was a time that the prohibition on slavery felt like something of an anachronism. But now Additional legal aid funding is needed to help Defence lawyers meet new digital forensics that provision has had to be dusted off to persuade governments to double down on human standards. “We need to fund forensic science properly and it needs to be funded from the cen - exploitation. On the other hand, efforts by the UK government to control this trafficking by tre,” Dr Gillian Tully told the Forensics Europe Expo in London. “It needs to be funded so that obstructing forced marriage arrangements have been frustrated by Article 8. there’s appropriate money to achieve [these] standards.” Computer, phone and data techno - When it comes to the concept of the “family”, the formerly expansionist Strasbourg Court is hav - logical advances in police investigation have coincided with the closure of the Forensic ing difficulty finding a place to stand. Transsexuals have no right to adopt under this provision, Science Service, the Guardian reported last week. Although standards are working well for tra - although more recently an argument that the refusal of adoption to a lesbian applicant breached her ditional forensics test such as DNA or fingerprints, according to Peter Sommer, Professor of right to family life succeeded before the Grand Chamber. But the right to marry under Article 12 Digital Forensics at Birmingham City University, “computers and mobile phones are complex remains within its orthodox box, entitling only those individuals of opposite biological sex. Neither scenes of crime. It’s not just a DNA match. People are being asked to show evidence of plan - Article 8 nor Article 12 have prevailed as rights of access to modern reproductive technology. It ning, of bad character and of a course of action. It requires a lot expert interpretation. “In the seems that for the time being at least the Convention authorities prefer to leave people to prosecute digital world, things change all the time; the tools need constant updating… If you haven’t been their own search for reproductive success without the help of enforceable civil rights. But Article 14, able to carry out a test, the paedophile, terrorist or extortionist may go free.” which prohibits discrimination, has been found to cover discrimination on the basis of genetic dis - Dr Tully highlighted cell site analysis, by which the location of mobile phones can be estab - ease (haemophiliacs who suffer from thalassemia). The Court reached this conclusion despite the lished, and the precision of which is open to challenge and interpretation in court. ACC Richard fact that Article 14 “does not mention health, genetic characteristics or handicap amongst the bases Berry, lead officer for the National Police Chiefs’ Council on digital investigation, noted the upon which discrimination is prohibited.” The list of motivations for discrimination under Article 14 is emerging threat of digital medical crime: “You can have loss of data, really sensitive hacks into “not exhaustive”, and therefore genetic disease constitutes a prohibited ground for discrimination medical technology. Issues of security are not being considered in product development. Your derived from factors “external to the Convention, such as the EU Charter on fundamental rights and crime scene may be distributed data. We have implanted devices under people’s skin which can freedoms” ((Article 21). This ruling is interesting not only because the Court chose to rely upon the [be made to cause] harm. There’s an app, that scares me to death, that monitors pacemakers. EU Charter of which prohibits discrimination on “genetic features”); it reflects the explosion in genom - The protocol in the app is Bluetooth [wireless technology]. It can break into Bluetooth at 1,000 ic data and the ability to diagnose susceptibility to future disease, based on yards.” Berry added that demand for tracking down IP addresses has grown exponentially, with one national intelligence agency already receiving 90,000 requests this year compared with Coroner’s Conundrums: Born Alive or Still-Birth, and Mother’s Anonymity 17,000 in 2015. Time pressures to comply with new digital forensics standards could result in “a A sad story of human frailty posed two difficult problems for the Coroner, and the Court of bit of a car crash” if Defence firms are not ready, Dr Tully told the conference. Appeal. A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence Convention Rights Page updated the shame about reporting the death. She had given birth in her bedroom at home, and she said We (UK Huma Rights Blog) have finished an overhaul of the Convention rights pages to that the baby had been cold when born. But not all was as it seemed. Inquiries of the alleged reflect recent political and legal developments since they were last reviewed. The most impor - rapist revealed that he and the mother had been in a secret sexual relationship. Mother eventu - tant of these is the vote to leave the European Union and what implications this might have ally admitted that this was true and back-tracked on the rape allegation. Unsurprisingly, the death for the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. came before the Coroner; at very least, the cause of the death was unknown. For the moment I have left in place the editorial material matching each of the Charter rights Jurisdiction: R (o.t.a T) v. HM Senior Coroner for West Yorkshire [2017]” The first problem with the Convention rights but the Charter and the role of the ECJ in UK legal affairs may be arose because of the pathologists’ opinion that there was no obvious cause of uterine death, or one of the first features of the post-Brexit landscape to change (see Marina Wheeler’s post on indeed of congenital disease. Such finding as there were (cerebral congestion) were consistent how that court might have overstepped the mark with the Charter, and David Hart’s discussion with but not probative of asphyxia, and any asphyxia might have been caused before or during on the topic of ECJ muscle-flexing here, here and here). delivery – or by suffocation. Coroners’ duties arise in respect of the “body of a deceased person”. The task of updating the discussion on individual rights is in itself revealing. No progress has And neither a stillborn child nor a foetus is a “deceased person”. They never were a person. This been made on the right to die with dignity since Diane Pretty took her case all the way up gave rise to the mother’s argument that the coroner had no jurisdiction to investigate this death, through the UK courts to Strasbourg, although we might draw some comfort from the decision because he was not in a position to conclude before his formal investigations started that the by the Appeal Court in Conway to allow him to proceed with a challenge to the ban on child had probably been born alive. 13 14 On a literal reading of s.1 of the Coroner and Justice Act 2009, there is something in the point. Because he pleaded guilty in a magistrates court, Chikhmous was not entitled to But the CA concluded that, read in context, this could not be right. Because it would require a coro - appeal against his conviction. He approached the Criminal Cases Review Commission in ner to determine as a preliminary issue on incomplete evidence one of the very matters he would be 2015. Having considered the case in detail, the Commission has decided to refer the case required to determine on full evidence at an inquest, namely whether the child was born alive The for appeal. The referral is made on the basis that Mr Chikhmous could not have made an Court looked at the statutory history of the role of coroners, and at editions of a leading textbook informed choice as to plea because the legal advice he received was incorrect and that he (Jervis) back as far as 1829. All contained precedents as to a conclusion that a child was stillborn, should have been entitled to rely on the statutory defence available under section 2(4)(c) and this issue was to be considered as a preliminary issue at inquest – rather than before it. In sum - of the Asylum and Immigration (Treatment of Claimants) etc. Act 2004); namely that he had mary a coroner can investigate the death of a baby who may have been born alive or may have a reasonable excuse for not having a travel document. The Commission therefore consid - been still-born without first being satisfied on balance of probability that it was born alive, so long as ers there is a real possibility that the Crown Court will conclude that, in all the circum - he suspects one of the matters set out in s.1(2) is in play [including unknown cause]. The question stances, it should allow Mr Chikhmous to vacate his guilty plea on the basis that he was whether there was a death is a component of the matters which may be the subject of suspicion. So deprived of a defence that was likely to have succeeded. In reaching its decision the the mother faces an inquest, which is why the second question arose. Commission has considered the case of R v Mehmet Ordu [2017] EWCA Crim 4 because Anonymity: The mother relied on Arts. 2, 3 and 8 ECHR in support of her contention that she it is possible that the appeal court may find that the defence advice was wrong only should have anonymity and reporting restrictions should be imposed on the forthcoming because of a subsequent change of law. In any event the Commission has taken the view inquest. She had been threatened by texts and on Facebook from members of her family, that, even if the appeal court finds the defence advice was wrong at the time, substantial either to harm her or to be taken off to Pakistan to get married – so as to avoid shame on the injustice may still be considered. This is because, while this may be considered a relative - wider family. The CA seemed a bit sceptical about this evidence; all the texts had been got rid ly minor conviction with an application made almost three years later, its longer term impli - of, and her Facebook account deleted, and she had not gone to the police about it. I have to cations for Mr Chikhmous are arguably significant. Mr C was not legally represented in his say none of this seems surprising to me. However, the mother faced a major problem, in that application to the Commission. This case is one of a number involving asylum seekers and investigation had already been opened by a previous coroner, in open court, which had been refugees that the Commission has referred to the appeal courts in recent months. Several reported by the local paper, both in print and on-line. This tells the story, and identifies T as other cases raising similar issues are currently being investigated by the Commission. mother. This remains on-line and easily accessible. There is of course power to order anonymity at inquest, but it requires cogent justification. The CA was not persuaded by the evi - Seventeen Killed in Mass Prison Break in Papua New Guinea dence on Arts 2 and 3 about the threats. Art.8 required the usual balancing exercise between Prison guards have shot dead 17 inmates after a mass breakout at Buimo prison in Papua those rights and the rights of the press under Art.10 to report her name and the full story. On New Guinea.Three prisoners have been recaptured while 57 others managed to escape and this balancing exercise the CA was robustly against the mother remain at large.Authorities have warned that the escaped inmates, some of them still awaiting The conduct of the claimant was not in any sense a private matter….. The claimant was the trial, pose a serious threat to the safety of the area. The prison in Lae, Papua New Guinea's central actor in what had happened. She had concealed a baby’s body for six days and failed second largest city, has seen repeated similar escapes over the past years. "The majority of to report the birth or still-birth. If the baby was born alive, there would be the further public those who escaped were arrested for serious crimes and were in custody awaiting trial," police interest in ascertaining the cause of death. In addition she had made a false allegation of rape Chief Super in tendent Anthony Wagambie was quoted in several local media.A good number against some innocent man which she only admitted after investigation by the police. The were arrested by police last year for mainly armed robberies, car thefts, break and enter and issues were of particular interest and importance to the local communities. There was a sig - stealing. Among them are convicted prisoners."He warned the escapees that they would be nificant public interest in such issues being fully open for debate. Hence, the Coroner had caught and encouraged them to surrender themselves to community leaders, church elders or been right to refuse anonymity and reporting restrictions. UK Human Rights blog family members to then be taken back to prison.

CCRC Refers Travel Documents Conviction of Hazifa Chikhmous to Crown Court Hostages: Andrew Malkinson, Michael Ross, Mark Alexander, Anis Sardar, Jamie Green, Dan Payne, Mr Chikhmous is a Syrian national who arrived by air at Gatwick Airport in 2012 and claimed Zoran Dresic, Scott Birtwistle, Jon Beere, Chedwyn Evans, Darren Waterhouse, David Norris, Brendan asylum. He did not have a passport when he arrived. He was arrested and charged with failing McConville, John Paul Wooton, John Keelan, Mohammed Niaz Khan, Abid Ashiq Hussain, Sharaz Yaqub, David Ferguson, Anthony Parsons, James Cullinene, Stephen Marsh, Graham Coutts, Royston Moore, Duane King, to produce an immigration document contrary section 2(1) of the Asylum and Immigration (treat - Leon Chapman, Tony Marshall, Anthony Jackson, David Kent, Norman Grant, Ricardo Morrison, Alex Silva,Terry ment of claimants) Act 2004). His solicitors advised him that he had no defence to the charge Smith, Hyrone Hart, Glen Cameron,Warren Slaney, Melvyn 'Adie' McLellan, Lyndon Coles, Robert Bradley, John despite being aware that he could not have obtained a Syrian passport and was at risk of per - Twomey, Thomas G. Bourke, David E. Ferguson, Lee Mockble, George Coleman, Neil Hurley, Jaslyn Ricardo Smith, James Dowsett, Kevan & Miran Thakrar, Jordan Towers, Patrick Docherty, Brendan Dixon, Paul Bush, secution there because of close family connections with prominent opponents of the Syrian Alex Black, Nicholas Rose, Kevin Nunn, Peter Carine, Paul Higginson, Thomas Petch, Vincent and Sean Bradish, regime. On the day after his arrival in the UK Chikhmous followed the legal advice he was offered John Allen, Jeremy Bamber, Kevin Lane, Michael Brown, Robert Knapp, William Kenealy, Glyn Razzell, Willie Gage, Kate Keaveney, Michael Stone, Michael Attwooll, John Roden, Nick Tucker, Karl Watson, Terry Allen, and pleaded guilty at Crawley Magistrates Court. He was sentenced to 12 weeks imprisonment. Richard Southern, Jamil Chowdhary, Jake Mawhinney, Peter Hannigan, Ihsan Ulhaque, Richard Allan, Carl He was granted asylum by the Home Office while still serving his prison sentence. Kenute Gowe, Eddie Hampton, Tony Hyland, Ray Gilbert, Ishtiaq Ahmed. 15